Deciphering the Purpose(s) of Indian Competition Law: Where Does India Stand in the Neo-Brandeisian Debate?

Abstract

Most jurisdictions with a long history of antitrust like the US and the EU have debated the purpose of their respective competition laws ad nauseam. The Neo-Brandeisian movement has once again brought this esoteric debate to the fore. The Indian competition regulator has also followed in the footsteps of its foreign counterparts and initiated several investigations against Big Tech platforms using non-price-based theories of harm. Despite this active regulatory trend, the purpose of Indian competition law has not been studied in any depth, creating a jurisprudential lacuna which threatens to result in principally unpredictable and theoretically incompatible precedents. My paper fills this lacuna by tracing the evolution of Indian competition law starting with the Constitution and Constituent Assembly Debates (1947–1950s) which remained extremely wary of private monopolies; to the Monopolies Commission era (1965–1980s) which reluctantly tolerated monopolies due to their potential to act as ‘domestic champions’; to the Raghavan Committee (1990s-present) which in the post-Washington Consensus era enacted an almost neoliberal Competition Act. For each of these phases, the paper examines the purpose of Indian competition law along three metrics, namely, whether the law was intended to discourage concentration per se, whether non-economic factors were relevant to competition assessment, and the range of economic factors that were relevant to competition assessment. With the passing of a new amendment and the proposed Digital Competition Act, competition enforcement in India seems to be at the cusp of a new era. The paper concludes by arguing for a National Competition Policy which would outline regulatory objectives and enforcement priorities for this new era. The paper thus illuminates the historical and contemporary Indian perspective on the ongoing global conversation about the purpose of competition law. India’s experimentation with a wide range of regulatory objectives and enforcement approaches (ranging from monopoly control and planned economy to laissez-faire) offers lessons for posterity and also for other similarly situated countries.